Supreme Court hears dispute over airline's report of 'unstable pilot'

WASHINGTON — The Supreme Court grappled Monday with whether to expand legal protections for airlines that report "suspicious" activity to the Transportation Security Administration, even if such information later turns out to be exaggerated or misleading.

The case began when an Air Wisconsin Airlines pilot, William Hoeper, reportedly "blew up" at a flight instructor in 2004 after he failed a fourth and final test on a simulator for a new kind of airplane. Failure meant Hoeper would be fired by the regional air carrier.

The instructor at the testing facility near Dulles International Airport outside Washington told an Air Wisconsin manager that the pilot was "very angry" and that he "feared for his physical safety during the confrontation," according to court records.

After the test, Hoeper boarded a Dulles flight as a passenger to fly home to Colorado. The manager reported the encounter to TSA officials, referring to Hoeper as an "unstable pilot" who "may be armed." Hoeper had been authorized to carry a firearm on airplanes, but he was not armed at the time of the incident.

As Hoeper's flight was taxiing for takeoff, TSA agents called it back to the gate. Hoeper was removed, searched and questioned. He was released and took a later flight.

After being fired, he sued the air carrier, claiming he had been defamed by accusations that were false, reckless and hurtful. A Colorado jury awarded him $1.4 million in damages and the state Supreme Court upheld the verdict, ruling that the Air Wisconsin manager knew the pilot was not "mentally unstable."

The federal government sided with the airline industry Monday in urging the U.S. Supreme Court to set aside the award, arguing that airlines should be encouraged to err on the side of caution in the post-Sept. 11 era.

A law adopted after the Sept. 11, 2001, terrorist attacks, in which four planes were hijacked, "gives airlines very wide latitude in how they describe suspicious activities," Eric Feigin, an assistant U.S. solicitor general, told the court. "Misconceptions and exaggerations can occur," he said, because officials do not have time to check out their suspicions.

"Only the most extreme … of false reports" should trigger legal liability, industry trade group Airlines for America said in a brief to the court.

The case calls on the court to weigh the safety of air travel against the prospect of ruined careers. The pilot argued that his professional reputation was destroyed because of the false claim. Justices sounded ready to rule for the airlines, but several said they faced a hard choice because the Air Wisconsin manager appeared to have exaggerated the pilot's mental state.

"Isn't there a difference between saying someone's angry and someone's mentally ill?" Justice Sonia Sotomayor asked an Air Wisconsin attorney.

The attorney, Jonathan Cohn, defended the manager's choice of words, saying many people might use terms like "he lost it" or he "went off the deep end" to express the same concern.

"Yes, you could say he's nuts," Justice Antonin Scalia said. "But the question … is whether that is false. The mere fact that a lot of people will exaggerate and say things that are simply not true doesn't make it OK."

In its appeal, the carrier cited the 2001 law that encouraged airlines and their employees to report "any suspicious" behavior that could involve a safety threat or terrorism.

But Kevin Russell, an attorney for the pilot, said the law should not protect reports that were "false, inaccurate or misleading."